More and more these days, the attorneys of bus and motorcoach passengers have become increasingly crafty, and their tactics and obscene financial victories are spreading rapidly, soaking innocent vehicle manufacturers and suppliers for enormous sums of money.
Trends and Travesties
A catastrophic bus or motorcoach accident can involve multiple fatalities and dozens of injuries – sometimes dozens of both. Damage awards of $100M to $200M are not unheard of. However, the operating companies whose drivers and schedules generally cause these accidents often carry only $5,000,000 in insurance. To make up the difference, the victim’s (or plaintiffs’) attorneys sue every conceivable party in sight, often under the most ridiculous of theories, irrespective of those parties’ genuine responsibility for the accident. Unfortunately, along with settlement awards that are theoretically confidential, what also manages to leak out is the strategy the plaintiffs’ attorneys employ to leverage these settlements.
Ugly and Uglier
In the lion’s share of these accidents, the true culprit is usually a small charter operator whose driver falls asleep at the wheel (often compounded by the residual effects of drugs or alcohol), or is distracted by cell-phone usage or texting. But the lawsuit that triggered this feeding frenzy was a 2006 accident involving five fatalities where the motorcoach manufacturer that had nothing to do with the accident settled out for $80,000,000 – on the theory that its seats were defective because they did not contain three-point seatbelts. That co-defendant failed to argue effectively that, when its vehicle was produced, not a single other coach in the country had seats with three-point seatbelts. A recent follow-up lawsuit involving another accident with 17 fatalities — headed up by the same plaintiffs’ attorney — went a step further by now suing the seating manufacturer which, along with the vehicle manufacturer settling out for $40,000,000, also settled out – along with two major, international tire companies and the State (for a defective guardrail), largely because no co-defendants’ experts other than myself and Larry Plachno recognized the litany of errors in the National Transportation Safety Board report about the accident – a report that not only ignored driver fatigue when the evidence reeked of it, but actually stated that it was not a factor in the accident!
Such lawsuits are not rare, and involve vehicles beyond just motorcoaches. Recently, almost the exact same approach was employed in a lawsuit involving a catastrophic schoolbus accident. I am certain there are or have been dozens of similar lawsuits in the past few years, and many more to come. Yet just as the number of catastrophic accidents is spiraling out of control, attorneys are becoming increasingly aware of these tactics scaring parties which do not even belong in the case into obscene settlements, or winning enormous damage awards at the trial stage, largely because the co-defendants either do not defend themselves well, or increasingly, do not defend themselves at all.
Reasons and Relationships
Innocent co-defendants in these lawsuits are victims of some unfortunate dynamics:
- The defendants do not chose the attorneys who represent them; their insurance carriers do.
- The defendants also do not choose the experts their attorney’s engage – and many carriers and attorneys alike often have no clue which individuals are genuine experts.
- Many defendant’s attorneys do not even want to engage genuine experts. Instead, to save money, they employ “local yokels.” In contrast, many plaintiffs’ attorneys employ what I like to call “parrots” or “shills” – “experts” who bring only marginal expertise to the table, but who, in turn, will say virtually anything their attorneys tell them to – a tactic that often backfires under cross-examination only when the defendant’s attorney puts up a fight.
- Occasionally a plaintiff’s attorney will find a genuine expert, but one who is willing to “stretch the envelope” enough to permit that attorney to overextend the scope of his or her case to rope in a cadre of co-defendants not remotely responsible for the accident.
- As noted, the genuine perpetrator often has limited insurance, and in many States, where it is a public agency, it enjoys an immunity cap – typically $100,000 to $200,000 – not nearly enough to cover the damages associated with 15 to 20 passengers killed and another half-dozen transformed into quadriplegics requiring around-the-clock nursing care for the rest of their miserable lives.
Regarding the last point – a genuine perpetrator with limited insurance – what do the victims’ attorneys do? What they do is, they go after other parties connected to the accident, but who did not remotely cause it, simply because they have “deep pockets.” Who has the deep pockets? You guessed it: Vehicle manufacturers and their suppliers — particularly seating companies, but also tire companies, brake manufacturers, axle manufacturers, engine and transmission manufacturers, wheelchair securement manufacturers, and even guardrail providers (usually State departments of transportation). Yet so frightened are the insurance carriers covering these parties that they are rarely willing to expose the resources of their “catastrophic coverage” to the risks of a trial. So instead,they settle for colossal sums of money – simply because they perceive the risks of losing at trial to be even worse. Unfortunately what is not taken into consideration is the likely chance that the innocent parties will end up winning, and thus paying out nothing. Certainly there are risks. Juries can be unpredictable, and sometimes sympathize with the victims and ignore the facts. But these risks do not justify simply caving in. What caving in does is encourage more and more plaintiffs’ attorneys to employ these same tactics, in lawsuit after lawsuit. Justice be damned. The problem is, the plaintiffs’ attorneys are getting better and better at this ruse. Worse still, the more the hapless, innocent co-defendants cave in, the more aggressive the plaintiffs’ attorneys become, and the more ridiculous their arguments evolve.
One importantdynamic that accounts for most of the accidents is the fact that the motorcoach industry enjoys an exemption from changes made to the Hours-of-Service regulations a decade ago — changes that apply to the trucking industry, as well as to the Canadian motorcoach industry. Those changes would have limited the start time of a motorcoach driver’s shift to no more than three hours earlier or later than the shift driven the day before. Of course, this exemption came with the expectation that motorcoach operators would employ some degree of “fatigue management” in their assignment of drivers to shifts.
In reality, of course, many if not most motorcoach companies do not even try to do so. This is particularly true of the 4000 owner-operator companies deploying a single vehicle. It is not exactly easy to select drivers to avoid the jet lag of widely-varying shifts when the driver pool is a single person, or even a handful. And, of course, we do not remotely have the number of enforcement officers needed to keep the vehicles of those who disregard the realities of “circadian rhythms,” and the jet lag that ignoring them creates, off the road. Regrettably, many operators are struggling financially, and have difficulty resisting the lure of a lucrative trip despite the hours it involves. Otherwise, it would be unrealistic to expect gambling casinos, amusement parks, tourist attractions, historic museums and monuments, theaters, athletic venues and other destinations to worry about the occasional bus or coach that flies off a bridge or strikes a bridge abutment when its exhausted and poorly-nourished driver nods off behind the wheel – often with residual amounts of alcohol or controlled substance in his or her bloodstream. Nor should it come as a surprise that an almost astonishing percentage of motorcoach (and truck) drivers have a medical condition known as Obstructive Sleep Apnea: A recent Australian study of 480 truck drivers found that close to half of them had Sleep Apnea – compared to roughly six percent of the general population.
Enough is Enough
What is surprising about most of the lawsuits that drag in innocent parties is the profound stupidity of the plaintiffs’ arguments. In a recent case where I tried to help defend a seating manufacturer, the small army of plaintiffs’ attorneys and their experts argued that the seats of it motorcoach manufactured in 2001 were defective because they did not contain three-point seatbelts. The fact that not a single coach manufactured in the United States in 2001 did not deter the entire spectrum of innocent co-defendants’ insurance carriers from cowering like half-dead sheep, and failing to fight back against some of the most ridiculous arguments our legal system has ever known. Honestly, is a product “defective” the minute something different – not even necessarily better – hits the market? What kind of society would we be if this were the case? Applying this idiotic notion to its fullest extent, product development in a broad range of areas – vehicles, tools, cleaning supplies, construction and medicine, simply for starters — would effectively screech to a halt, while only those products posing no risk whatsoever would enter the market.
If we want to reverse the growing trend toward holding innocent members of our industry responsible for accidents to which they did not remotely contribute, and help put a stop to practices which border on insurance fraud, we must stop pointing fingers at one another in efforts to reduce our “slice” of the damage pie by fattening up the slices of our fellow co-defendants. Instead, we must begin working together in a meaningful and well-coordinated effort to stop settling out, and fight back. And we must also make some important changes to the regulations and industry standards that govern our operating practices.
Future installments in this series will tell the tale of one recent lawsuit where tens of millions of dollars were simply handed over by a motorcoach manufacturer, a seating manufacturer, two major, international tire companies, and even a State (for its “defective guardrail”). That they yielded to arguments that a junior high school student could see through is all the more tragic. But this is largely because these co-defendants did not make this decision: Their insurance carriers did.
The additional installments in this series will describe the characteristics of our current operating environment in more detail, outline the tactics employed by plaintiffs’ attorneys to intimidate us, opine on the conflicting agendas of insurance carriers and their clients, and finally, lay out a strategy for working together – not as an industry, but as a team – to put a stop to this inexcusable injustice that, if not checked, will increasingly chip away at our industry until it is crippled or destroyed.
Those of you who think this is not possible need merely remember what happened to this nation’s unsubsidized transit industry – completely dead apart from a skeleton of service by 1969, and brought back to life only when “capital assistance” subsidies (the Federal government paying for 80 percent of the vehicles) were provided, in 1964, under late President Johnson’s Model Cities Program.
It is also obvious that the more money we voluntarily donate to these follies of a lawsuit, the fewer resources we will have to employ important safety measures. This dynamic will necessarily translate into more and more accidents, and more and more damage payouts, as this dangerous spiral increases.
It is my hope that this frightening glimpse of what is happening to our industry, and sister industries, shakes NBT readers up enough to pay close attention to the installments to come – installments that are likely to be more upsetting than this one. But they need to be. Because if we do not begin fighting back, we will continue to lose more and more lawsuits, and more and more money. What will happen to us as a consequence should not be hard to see. So stay tuned and stay angry. There is much to present, much to discuss, and much to do.